History, analysis, and unabashed gossip about the start of the American Revolution in Massachusetts.

J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

Monday, March 19, 2007

Last week the U.S. government released a transcript of its extralegal proceedings at Guantanamo Bay determining that (“whether” seems to give too much credit to all concerned) Khalid Sheikh Mohammed is an “enemy combatant.” According to the censored document, Mohammed took responsibility for several murderous attacks and a lot of vague “plans,” and apparently mentioned being tortured in U.S. custody. He then made a rambling statement, made even harder to follow by the language barrier and possible transcription problems. Among other things, he said that some of the U.S.A.’s “enemy combatants” were actually prisoners of the Taliban regime, suspected of having been sent (by Saudi Arabia?) to assassinate Osama bin Laden.

In that statement, Mohammed also twice drew an analogy between himself and Gen. George Washington:

I consider myself, for what you are doing, a religious thing as you consider us fundamentalist. So, we derive from religious leading [reading?] that we consider we and George Washington doing same thing. As consider George Washington as hero. Muslims many of them are considering Usama bin Laden. He is doing same thing. He is just fighting. He needs his independence. . . .

If now George Washington. If now we were living in the Revolutionary War and George Washington he being arrested through Britain. For sure he, they would consider him enemy combatant. But American they consider him hero. This right the any Revolutionary War they will be as George Washington or Britain.

Khalid Sheikh Mohammed is a 1986 graduate of North Carolina Agricultural & Technical State University, and thus familiar with the basics of U.S. culture. It’s no surprise that he would invoke the name of George Washington, who looms so large in our history and heritage. But his analogy fails on two levels.

First, George Washington didn’t lead attacks on civilian populations, as Mohammed admitted to making his main effort (and expressed regret for, somewhat late). Because of prevailing military customs, and because he was fighting on his own ground, Washington usually sought to minimize civilian casualties and suffering. Although a pro-American terrorist operated in Britain during the war, neither Washington nor the Continental Congress knew about him.

The major exception to this pattern when Washington approved of campaigns against Iroquois allies of the British. When Native American and European-American armies fought, there was a conflict of competing military customs as well, with civilians targeted for capture and death. Furthermore, the U.S. army did want to push the native population from the lands west of Albany. But even then Washington’s orders targeted settlements, not populations, and ordered civilians to be taken alive:

The immediate objects are the total destruction and devastation of their settlements, and the capture of as many prisoners of every age and sex as possible. It will be essential to ruin their crops now in the ground and prevent their planting more.

These campaigns might have been the source of Washington’s Seneca nickname “Town Destroyer,” or might simply have reinforced the ominous meaning of that name for Native Americans. But Washington did not seek to maximize the civilian death toll.

Mohammed’s second historical lapse is that if the British military had captured Washington during the war, the best evidence is that they wouldn’t have treated him as an “enemy combatant” or the eighteenth-century equivalent. They wouldn’t have cut him off from the customary protections of law. They wouldn’t have tortured him. In fact, the best evidence suggests the military would have treated the captured general rather well.

The British military did capture some U.S. generals during the Revolutionary War: Gen. Charles Lee in New Jersey, Gen. Benjamin Lincoln in Charleston, perhaps others I don’t recall. And the British treated those men as prisoners of war, eventually releasing them in prisoner exchanges. Similarly, the American forces captured British generals: Gen. John Burgoyne after Saratoga, Gen. Cornwallis at Yorktown. They, too, were treated as prisoners of war. Only men captured in the act of spying or sabotage while in civilian dress were subject to military trial and execution.

In fact, given the society’s deference to gentlemen—and only gentlemen could become generals—captured commanders were treated far better than ordinary soldiers. Americans complained for decades after the war about the plight of P.O.W.’s on the prison ships anchored off Brooklyn, and Britain resented the U.S. decision not to release Burgoyne’s “Convention Army” as initially promised. Had the British captured Washington, they might have tried him for treason, but they would certainly not have tortured him or come up with a new categorization like “enemy combatant” to keep him out of the legal system.

In sum, Mohammed’s statement was historically inaccurate in two ways: the current U.S. administration has treated prisoners worse than the British government during the Revolutionary War, and Mohammed admitted to behaving far worse than George Washington.

8 comments:

Huh, comparing Washington (an icon of the best ideals of America) to Khalid Sheikh Mohammed (an icon of a weird theocratic empire of crime) is a pretty loaded topic.

But...I think Washington's campaign against the Indians should be seen as part of a larger process that amounted to large-scale genocide, and he did order the killing of more civilians than Khalid Sheikh Mohammed was responsible for.

I think any comparison of this sort gets dicey because it involves intentions and effects. Is someone who intends terrible things more guilty than someone with good intentions who ends up causing worse harm?

Mohammed worked to create the largest death toll in his operations, the biggest of which were aimed at civilian, not military or government targets.

Washington didn't order civilians to be killed—but he must have expected some noncombatant deaths. Does that amount to the same sort of culpability?

If we consider Washington as part of a larger process of attacks on Native populations in North America, then do we have to consider Mohammed as part of a larger movement as well? And if so, what defines the limits of that movement?

I think the closest claimants are those fighting for independence in their own countries, not attacking other countries. Yet independence leaders are fivepenny a dozen in history.

What made Washington unusual was his deference to the elected Congress during the war, his resignation at the end of the fighting, his adherence to the limitations of Presidential power, and his choice not to continue as President after two terms.

I hope there are more people with those qualities in today's conflicts, but I haven't seen any clear candidates.

It seems to me that there is a distinction between one who acts with intent to cause a social harm and one who acts either recklessly or negligently in relation to a resulting social harm. Actually, it is not my private philosophical opinion. Criminal Law as developed by English and then adopted by American courts recongized this distinction (doctrine of "specific intent"), though the common law process was very tedious and their formulation was admittedly "messy."

More importantly, however, the American Law Institute was careful to distinguish between these different levels of culpability when it drafted the Model Penal Code. The Culpability Provision of the Model Penal Code is the centerpiece of the endeavor and is arguably one of the greatest accomplishments in American Law in the Twentieth Century. Additionally, the House of Lords, applying common law doctines in the absence of a statute like the MPC, have also reached similar legal rules in both Regina v. Morgan and B. v. DPP.

To some modern legal scholars, mental culpability is the linchpin of guilt. Of course, we don't criminalize "bad thoughts" without "bad acts." But this movement gives greater weight in the justification for punishment to the "bad thought" than it does to the "bad act." This seems to be the approach of the ALI in the MPC as well as the House of Lords in the watershed cases cited above.

To illustrate, when Khalid Sheikh Mohammed acts out his plans, he does so in order to achieve a particular socially harmful goal while simultaneously aware that "the props" are in place to bring the socially harmful result to fruition. Alternatively, he does so knowing to a virtual certainty that the social harm will result. Thus, his culpability is very high.

Did Washington act with the same mind set? Probably not. He probably either disregarded a substantial risk of non-combattant deaths, or should have known that non-combattant deaths would result.

What is the practical difference behind all of this? What a person actually possesses in their mind (purpose, knowledge, recklessness, and motive) is distinguishable from what is outside a person's mind (negligence=what a person ought to know). Even within the category of things within a person's mind, this enumeration of categories is from the extremely narrow (purpose) to only slightly broader (knowledge) to "a bit" broader (recklessness) to the very broad (motive).

I would add that motive is a tricky component. Generally it is not used in defining crimes, but there are many exceptions to this rule both as a matter of statute and as a matter of jurisprudence. That said, motive can play a role in determining culpability. On the other hand, it is not always a necessary element of a crime. Additionally, motive plays a role as a mitigating or aggravating factor for punishment only after guilt has been determined.

This all relates to civilian law. One might think that this is irrelevant in war. But "silent leges inter arma" is not the reason. In fact, the latin maxim is not really true at all, but that is another story. As to the question of culpability, it seems to me that motive really comes into play.

A soldier who pulls a trigger of a gun pointed at his enemy with the objective of ending the enemy's life while at the same time knowing that everything is in place to assure this result and he does in fact kill his enemy is not charged with the crime of murder. This is because of circumstances (war) and motive (defending the country, etc). My examples of circumstances and motive are non-exhaustive. However, when Jimmy Conway, Henry Hill, or Tommy DeVito ("Goodfellas") do the same thing, even if it is a "mafia war," it is Murder in the 1st Degree.

Sheik Khalid Mohammed's is more like the gangland mobster, though significantly more diabolical, and therefore his motive is irrelevant. His acts amount to a tremendously high level of culpability justifying great punishment. General Washington's war is more like the soldier in arms, so even if he acts in a way that seems to be reckless or negligence, motive and circumstances are relevant in drawing the distinction.

I would like to thank you for reading this post and for considering these thoughts.

It would be interesting to read a scholarly treatment of Sullivan's Expedition against the Iroquois that wasn't unduly burdened by "presentism." Are you aware of any such? I had numerous relatives involved as officers in the New Jersey Brigade so have more than an academic interest.

I would be very wary about comparing the Wyoming and Cherry Valley Massacres to the 9/11 terror attacks, and the subsequent punative attack on the Iroquois heartland with our war in Afganistan. The definition of "freedom fighter" may be in the eye of the beholder, but it is not synonymous with any one individual.

Thanks, ms, for all your thoughts. I think you get to a lot of the philosophical challenges in the lofty comparison K. S. Mohammed made between himself and Washington.

Your comment also points to another challenge when it comes to standards in warfare: sometimes wars take place across wide cultural gaps, and each side might have its own standards of legal or ethical behavior, as well as its own perceptions of the conflict.

Americans and British during the Revolution had basically the same legal systems and customs. However, the Iroquois (and there were some fighting on both sides) had different traditions. After many decades of interaction, the British-Americans and Iroquois were familiar with each other's behavior, so commanders shouldn't have been surprised at how differently the other group behaved. But the result was, I suspect, the harshest behavior from both sides, justified not just by their own standards but also by expectations/perceptions of how the other side behaved: attacks on civilians, limited adoptions of captives, "total war" attempts to wipe out villages and push back settlements.

As for today's situation, you've ably described the standards of law developed over hundreds of years of British-American history. I myself adhere strongly to the notion of mental culpability as more telling than total harm, though I think there's also some culpability in reckless or negligent behavior.

But of course Mohammed adheres to another system, also hundreds of years old, and believes his actions, though regrettable, are justified by that system. You consider him a sort of gangster; he considers himself a sort of holy warrior. Saying that Western civilization says his actions were wrong may carry little weight with other people who resent and distrust Western civilization.

Then, of course, there's the question of whether fighters and/or societies actually do conform to their own morals during wartime. That's when morals may be most important, but also when they're most difficult.

Tim, any complete account of the Sullivan/Clinton campaigns requires historical consideration of the Iroquois as well as the British and Americans. And doing that is almost "presentist" by definition. It wasn't a priority for most American historians, and most Iroquois chroniclers didn't participate in how our culture preserved and told history. So paying attention to those fighters and what they were fighting for may in itself reflect current American values.

That said, I think there's a risk that authors may wish to fill the hole in previous historiography by adopting the Iroquois viewpoint uncritically. This theater was one of the most desperate and vicious of the war, with ambition, desperation, nobility, and cruelty on both sides.

One book I'm hoping will succeed in providing a full picture of that part of the Revolution is Year of the Hangman, by Glenn K. Williams. I say "hoping" because I haven't read it yet—though my mother has.